from the those-enforcing-the-law-are-the-best-at-twisting-the-law dept

It's 2013, and despite oft-abused wiretapping laws being found unconstitutional when applied to recording police and new policies being issued to deter law enforcement officers from persecuting/prosecuting camera-wielding citizens, further incidents occur daily showing many PDs just aren't willing to cede this battle yet.

A Pennsylvania cop responding to a report of an accident refused to talk to the citizen unless his friend turned off the camera.

The citizen insisted on his friend recording, so Lancaster police officer Philip Bernot walked back to his car and drove off, refusing to take the report.

The citizen said he called the desk sergeant to complain, but was told it is a departmental policy not to be recorded.

Is it actually against departmental policy for Lancaster police officers to be recorded while performing their public duties (in public)? Well, that all depends on how you translate Pennsylvania's wiretap act, which aligns closely with the (formerly) onerous statute in place in Illinois. According to this 2007 Lancaster PD policy manual update, Pennsylvania citizens have the right to record video but not audio, unless both parties consent.

It starts out promisingly.

It is the policy of the Manheim Township Police Department to recognize the legal standing of members of the public to make video/audio recordings of police officers and civilian employees who are carrying out their official police duties in an area open to the public, and by citizens who have a legal right to be in an area where police are operating, such as a person’s home or business. However, this right does not prevent officers from taking measures to ensure that such activity and recording does not interfere or impeded with the officer’s law enforcement and public safety purpose.

The right to record audio and video seems to be guaranteed, provided there's no interference of police business (a huge gray area), and would seem to cover the contentious recording that caused an officer to walk off the job, as it were. But later in the same statement, this guarantee is undercut by a reference to Pennsylvania's wiretap act, providing every Lancaster police officer with a very convenient out.

The courts have made a distinction between simply videotaping an officer and videotaping with audio. When a person is out in public, he or she is voluntarily presenting their visage to the public and therefore can have no expectation that someone may photograph that person’s actions. However, when a person engages in discourse with another, as provided in the Wiretapping and Electronic Surveillance Control Act, 18 PA C.S.A. 5701, et seq. (“Pennsylvania Wiretap Act”), that person is entitled to expect that the discourse will remain private and not be shared with others through a recording device unless specifically consented to by the person speaking.

In order to ensure the state's (outdated) wiretap act isn't violated, those involved must jump through the following hoops.

If the officer would normally have an expectation of privacy and the officer observes the person being addressed audio taping or videotaping with audio, the officer may inform such person that he or she does not consent to the audio portion of the taping and request that the audio be shut off.

Following up on a reported accident on a public street would seemingly eliminate any "expectation of privacy," even for audio. Officer Philip Bernot felt otherwise, and chose to read the policy as being heavily reliant on this phrase in the preceding paragraph:

However, when a person engages in discourse with another… that person is entitled to expect that the discourse will remain private and not be shared with others through a recording device unless specifically consented to…

These two parts of the policy are at odds with each other and, indeed, with the opening paragraph that states the department recognizes the public's right to record video and audio of public servants performing their duties in public -- all of which Officer Bernot was doing, right up until he decided he wouldn't.

Pennsylvania's wiretap law provides plenty of exceptions for law enforcement and certain citizens to record audio with only the "consent" of the recorder (telemarketers, people discussing work with contractors) but it provides nothing specific regarding the general public recording public citizens. On the bright side, the wiretap law is set to expire at the end of this year (it was last amended in 2002 -- problematic enough given the exponential increase in citizens who carry cameras everywhere they carry their phones). Unfortunately, it looks as though renewing it completely intact is an option ("...unless extended by statute").

But is the Lancaster PD's contradictory reading of the wiretap statute accurate? Does it actually mean the public has no right to record audio of police officers without their consent, while completely free to record video and take photos? The Reporter's Committee for Freedom of the Press has a rundown on every state's applicable recording statutes and it comes to this conclusion regarding Pennsylvania's.

It is unlawful to record an “oral communication,” which is defined as “any oral communication uttered by a person possessing an expectation that such communication is not subject to interception under circumstances justifying such expectation” without first obtaining the consent of all parties engaged in the conversation. 18 Pa. Cons. Stat. Ann. § 5702. Thus, a journalist does not need consent to record conversations in public where there is no reasonable expectation of privacy.

If a journalist is allowed to record "oral communications" in public without consent, it stands to reason citizens should be allowed to do the same. Lancaster PD may be deterring recordings by providing a confusing mess of a policy, but its interpretation of the wiretap law is flawed. The PD may have its own departmental policy, but it's superseded by state law governing recordings.

The constitutionality of this law won't be stress tested until there are multiple incidences of abuse, unfortunately. In Illinois, it took several high-profile cases of police and prosecutorial abuse before it reached the critical level needed to prompt a ruling from the Supreme Court. A single case, properly routed, could have the same effect, but there's an equal likelihood the courts would view it as a departmental anomaly rather than a flaw with the underlying law. On the other hand, Illinois' nearly-identical wiretap law has been struck down, meaning there's some sort of comparative ruling, even if there's not actual precedence.

The Lancaster PD is misusing the wiretap statute, one that the original legislators never meant to be utilized as a shield against public accountability. Officer Bernot's refusal to perform his duty, whether "justified" by a bad statute or not, was completely immature.

Re: Post it on Youtube

Damn, you know what?! That's perfect for criminals to get away from cops! Just pull out a camera (of course, in a way that doesn't turn you into a bullet riddle corpse) and then start filming, and you get a free pass, as the cop runs away, scared to get his 'soul' sucked out of him and judge by the higher powers (aka the common good).

every time one of these type of cases goes to court, it goes against the Public Body, usually the Police, for stopping filming by citizens. why the hell doesn't one or more of the bone idle fuckers that are supposed to sort this shit out, sort it out, once and for all?? at this moment, regardless of what happens in the individual cases, police depts especially still do what they want, when they want. they are supposed to be the main upholders of the law! not the ones that break it first or as and when it suits them!! get your friggin' act together Congress, for Christ's sake!!

Re: the most surveilled city in the nation

Re: the most surveilled city in the nation

I live here (well, in the interest of full disclosure, in the "safe" and lily white suburbs; I'd like to move downtown.)

In general, people are much kinder and more polite and just generally nicer both downtown (Puerto Ricans dominate) AND in the suburbs than they are in say, the Bronx, NY.

That said, by legal mandate, I believe that every single police encounter should be recorded audiovisually to the greatest extent feasible. That would protect the very many good cops here, weed out the bad ones, protect the general (minority) populace downtown, and also eviscerate the very many arguments of criminals contending innocence when they're objectively not innocent. There is no reasonable expectation of privacy in public, so let's run with that.

And so it begins...

How many stories like this do we have to hear, but never hearing about the ACLU or other similar organizations getting involved?

The important thing is for this to be addressed in the courts, not on blogs. Too bad everyone is fighting for the "rights" of Mexican nationals and homosexuals who have vast support that their status is that of "normal" behavior and not a medical condition.

I don't really want to derail the subject but it's not like anything is happening anyway.

Re: Update

how is there any reasonable expectation of privacy when taking a statement?

does that also negate anything i say being used against me in a court of law?

after all, when you cuffed me officer, i thought we were just two good ol' boys shooting the the shit. I had an expectation of privacy, when i admitted to snorting all that cocaine and eating those nuns.

Fascists Police state

You can not have a totalitarian police state if officers are video taped breaking the law.look what happened to the officers shown brutalizing Rodney King.states make up laws that take away freedoms guaranteed under the Constitution, knowing full well they they can't have bad cops being video taped as it costs them millions of dollars.with that said im saying not all cops are bad but there ARE bad cops.attorney generals like to play word games with Constitutional rights involving video taping in public areas , all the while allowing police officers do the very same thing in video taping people they arrest(as long as it shows the criminal breaking the law and not the officer breaking the law)look at the case in Californian where 9 officers beat and killed a man who was passed out, the police held people ransom in their homes under treat of arrest unless they turned over their cell phones, and the proceeded to destroyed all videos showing how the officers murder the guy.

Police... abusing the law...

How... um... shocking.... police... abusing the law they are sworn to uphold because it's more convenient.

Hmm... sounds alot like... well... EVERY FREAKIN LAW ENFORCEMENT AGENCY! Laws are all fine and good when they can be used to their advantage, but easily and quickly ignored when they pose the slightest inconvenience or accountability to them.

Don't the vast majority of police cruisers record audio and video anyways? Even if he wasn't in view of the cruiser's camera, if he was in the general vicinity, the audio recording capability would have captured the dialog. If he was being recorded by the cruiser, that recording is public record which makes the conversation public record as well.

"If the officer would normally have an expectation of privacy and the officer observes the person being addressed audio taping or videotaping with audio, the officer may inform such person that he or she does not consent to the audio portion of the taping and request that the audio be shut off.

A police officer's sworn duty is to serve and protect. By law they may be able to have a right to privacy, but just because someone violates that right doesn't mean that said officer is excused from their line of duty.

What it does mean is that if the recording is used as evidence against them in a court of law, it should be dismissed. Or if someone posts it to YouTube or something, a case is brought to a court of law to determine if they invaded the privacy of said officer.

All of this is undertandable. But having a policy telling police officers to neglect their duty to serve and protect simply because they are being record is a disservice to the community they are supposed to protect. It's a bullying technique to merely get what they want. This should be a lawsuit and a court of law should straighten this out before this becomes the norm.

Also in Other PA Cities

I live in Pittsburgh. I fired a contractor once. He still had tools at my house, and showed up at my door at 6am banging, swearing, and threatening to break in if I didn't let him in to get his stuff. I called the cops. I began video taping everything just in case the contractor accidentally or intentionally damaged anything. When the cops saw the camera, they said they wouldn't speak to me if I kept recording. It irks me to this day. They wouldn't even say why they objected.

Cops are the enemy

They're cops - they are the real enemy of the public. They don't "protect & serve" anyone but the wealthy and powerful. The public needs to stop treating these morons as though they're special - they're not. Cops are, indeed, just over-protected spoiled bullies used to getting their way. Just behind them on the slime scale are the judges who always take a cop's word over the citizen's. F**k 'em all.

test

How is that illegal when they can record us with audio thats bull.Same thing thall did to them shall be done to thee.To much power they have.P.A. is one of the worst states to move to with the police have nothing to do but harass and the tax's are phonominal its like thirty of them.I moved to P.A. and can't wait to leave this piece of crap state.

proper response

Recent Pennsylvania wiretap case

Last month, a related case was settled against a Western Pennsylvania police department. In this case, a man was arrested under the wiretap statute for recording an encounter between his disabled friend and an aggressive police officer. The charges were dropped and the phone was returned *without* the recording, likely because the state Supreme Court has already decided that the wiretap statute does not apply where there is no reasonable expectation of privacy (as in encounters with police). In the civil suit against the Pennsylvania police department, the man was awarded $65,000 dollars, reaffirming the idea that his constitutional rights were violated. The idea that police officers are abusing this law is very disturbing. It prevents proper recourse for abuses of power against ordinary citizens. Thankfully, the courts have been very clear on this matter.

"The citizen said he called the desk sergeant to complain, but was told it is a departmental policy not to be recorded."

"[UPDATE: A commenter [THE COP HIMSELF] points out that the Lancaster Police Dept. apologized for Officer Bernot's actions and sent him back out to take the accident report.] "

even though the department said it was not policy to be recorded. What a bunch of bunk. We the cops (typically lower IQ than the mean, and laden with behavioral issues) CAN record you, because you might not being doing something just right.. However You can't record us being are shetee selfs, with left over childhood baggage because the video just might show us not doing our jobs (that a toddler could understand) correctly. That's because we aren't that smart, AND we break our own laws and have baaad tempers.. Nice POS arguments for someone's privacy. Obviously no one's privacy is breached until a recording is replayed in a situation deemed inappropriate. So it doesn't have to be replayed, and would be also boring on youtube if the cop just did his job right. Also after the fact the cop could be asked permission to play the video. Him denying this, speaks volumes. But as a public servant he should look and behave in a way that makes him look good in public. These stupid laws are written by people that simply have power money and weapons to protect them when they break all the laws they swear to uphold.